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AF | PDBR | CY2012 | PD2012 00114
Original file (PD2012 00114.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE NUMBER: PD1200114
BRANCH OF SERVICE: Army  BOARD DATE: 20130507
Separation Date: 20020809


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (75B/Personnel Administration Specialist) medically separated for chronic neck and low back pain (LBP). After a motor vehicle accident (MVA) she was referred to physical therapy (PT) for chronic low back and neck pain in December 2001. Despite PT, occupational therapy (OT), chiropractic care, non-steroidal anti-inflammatory drugs, antispasmodics, and pain medications, the CI failed to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded bilateral ulnar neuropathy at the elbow, chronic neck pain, chronic LBP, and mood disorder with depressive features due to ulnar neuropathy and post-surgical pain unresolved conditions to the Physical Evaluation Board (PEB) IAW AR 40-501. The PEB adjudicated the chronic neck and LBP pain without evidence of neurological deficits as unfitting, rated 10%, citing of the US Army Physical Disability Agency (USAPDA) pain policy. The bilateral ulnar neuropathy at the elbow and mood disorder with depressive features conditions were adjudicated as not unfitting and were not rated. The CI made no appeals, and she was medically with a 10% disability rating.


CI CONTENTION: “Service connected disabilities rated more than 10% by the VA which was included in the paperwork of the PEB proceedings; which should have been included in the overall rating of the PEB board proceeding which would have caused me to be medically retired from the US Army.”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting chronic neck and back pain conditions are addressed below along with the contended bilateral ulnar neuropathy at the elbow and mood disorder with depressive features. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records.



 RATING COMPARISON :

Service IPEB – Dated 20020606
 VA - (2 Weeks Pre -Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Neck and Low Back Pain 5099-5003 10% Degenerative Joint Disease (DJD), Cervical Spine 5290-5003 10%* 20020724
Chronic Lumbosacral Strain 5295 10% 20020724
Bilateral Ulnar Neuropathy at the Elbow Not Unfitting Postoperative Residuals, Left Elbow Ulnar Nerve Transposition 8716 10% 20020724
Right Cubital Tunnel Syndrome 8616 10% 20020724
Scar, Residual, Left Elbow Surgery Associated with Postoperative Residuals, Left Elbow Ulnar Nerve Transposition 7805 0% 20020724
Mood Disorder with Depressive Features Not Unfitting Mood Disorder with Depressive Features 9435 10%** 20020722
No Additional MEB/PEB Entries
 Other x 6
Combined: 10%
 Combined: 40% (With Bilateral Factor 1.9 for 8716, 8616)
Derived from VA Rating Decision (VARD) dated 20020820 (most proximate to date of separation [DOS])
* Code changed to 5003-5242 and rating increased to 30% effective 20081030
** Rating changed to 30% effective 20030203.


ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation. The Board utilizes service and VA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

The PEB rated chronic neck pain and chronic LBP under the single analogous 5003 degenerative arthritis code. This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only Veterans Affairs Schedule for Rating Disabilities (VASRD) guidance to its recommendation. The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was reasonably justified as unfitting in and of itself with the caveat that the final recommendation may not produce a lower combined rating than that of the PEB.

The Board first considered if both the chronic neck pain and chronic LBP conditions, having been de-coupled from the combined PEB adjudication, were each reasonably justified as independently unfitting. The service treatment record (STR) includes a long history of cervical spine pain and LBP with intermittent visits and a permanent U3/L3 for LBP, left ulnar neuropathy, and neck pain. The commander’s statement documented an inability to perform the duties of her MOS due to the limitations of her profile. The U3 can be attributed to the neck and left ulnar radiculopathy and the L3 can be attributed to the LBP. The presence of either the neck or the LBP alone (with its profile) would have rendered the CI unfit to perform her required duties. All members agreed that the chronic neck pain condition, as a separate condition, would have rendered the CI incapable of continued service within her MOS and it accordingly merits a separate rating. All members agreed that the chronic LBP condition, as a separate condition, would have rendered the CI incapable of continued service within her MOS and it accordingly merits a separate rating.

The chronic neck and LBP condition should have been rated IAW the 2001 VASRD standards that are no longer in effect. The 2001 VASRD coding and rating standards for the spine, which were in effect at the time of separation, were modified on 23 September 2002 to add incapacitating episodes (5293 intervertebral disc syndrome), and then changed to the current §4.71a rating standards on 26 September 2003. The 2001 standards for rating based on range-of-motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. For the reader’s convenience, the 2001 rating codes under discussion in this case are excerpted below.

 5287 Spine, ankylosis of, cervical:
Unfavorable.......................................       40
Favorable.........................................                30

5290 Spine, limitation of motion of, cervical:
Severe.........................................           30
Moderate....................................              20
Slight...........................................                 10

5289 Spine, ankylosis of, lumbar:
Unfavorable...............................                50
Favorable...................................              40

5292 Spine, limitation of motion of, lumbar:
Severe.......................................             40
Moderate..................................                20
Slight.........................................           10
5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion....  40

With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position................................................     20

With characteristic pain on motion...........    10
With slight subjective symptoms only.......      0


Chronic Neck Pain Condition. There were ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, summarized in the chart below.


Cervical ROM
(Degrees)
 PT ~ 9 Mo. Pre-Sep MEB ~ 5 Mo. Pre-Sep VA C&P ~ 2 Week s Pre-Sep
Flex (45 Normal)
 45 (70) 45 (70) 45
Extension (45)
 45 (65) 45 (65) 45 (55)
R Lat Flexion (45)
 40 40 45 (70)
L Lat Flexion (45)
 40 30 45 (70)
R Rotation (80)
 80 70 -
L Rotation (80)
 80 80 -
Combined (340)
 330 310 -
Comment
 Neck pain secondary to whiplash/hyper flexion Pain with ROM’s; C8 dermatome on right was hypersensitive to pinprick; muscle strength intact ; reflexes 2+ No pain on motion initially but pain increased throughout ROM with repetitive use; fatigability with repetitive motion; TTP cervical vertebrae, spinal accessory muscles bilaterally; painful during motions of rotation with repetitive use; joints weaker throughout ROM when resistance applied
§4.71a Rating
 10% 10% 10%

The CI developed neck and LBP after a MVA while she was pregnant in November 2000. A c hiropractor evaluated the CI for chronic neck pain and prescribed treatment of moist heat, and intersegment traction . Initially cervical spine X -ray was normal ; however, a cervical spine X -ray performed in April 2001 showed degenerative changes at multiple levels. A cervical spine magnetic resonance imaging exam was normal . The CI was given a permanent U3 / L3 p rofile for LBP, neck pain, and left ulnar neuropathy. The MEB narrative summary ( NARSUM ) , completed 4 months prior to separation with the examination conducted 5 months prior to separation, indicated that the constant aching neck pain that radiated down into the mid- back on head flexion and extension , more on the left than the right . The pain did not radiate into the arms and threw s no arm weakness. The examiner indicated functional limitations of an inability to wear a backpack, wear a helmet, and carrying or firing a rifle. The MEB NARSUM exam findings are summarized in the chart above. The VA Compensation and Pension (C&P) exam ination completed approximately 2 week s prior to separation noted that the neck was most painful when she was wea ring head gear and during motions of rotation; however, the daily pain was constant and it would wax and wane during the day, depending on her level of activity. No radiculopathy accompanied the cervical condition. The C&P exam ination findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence. As described above, the PEB bundled both conditions in its application of the USAPDA pain policy. The VA coded the degenerative joint disease cervical spine as 5290 spine, limitation of motion of, cervical with 5003 a rthritis, degenerative (hypertrophic or osteoarthritis) and rated 10% for slight limitation of motion. All exams prior to separation demonstrated painful motion. A cervical spine X-ray showed degenerative changes at multiple levels. The MEB examiner noted functional limitations of the inability to wear a helmet wear a backpack or carry a rifle. The C&P exam noted neck pain wearing headgear and with motions of head rotation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59 (painful motion), the Board recommends a disability rating of 10% for the chronic neck pain condition coded 5290.

Chronic Low Back Pain Condition. There were ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, as summarized in the chart below.


Thoracolumbar ROM
(Degrees)
 PT ~4 Mo. Pre-Sep MEB ~ 5 Mo.
Pre-Sep		 VA C&P ~ 2 Weeks Pre-Sep
Flexion (90 Normal)
 90 90 70 *
Extension (30)
 20 30 30
R Lat Flexion (30)
 30 30 (35) 30
L Lat Flexion (30)
 30 30 (35) 30
R Rotation (30)
 30 25 -
L Rotation (30)
 30 20 -
Combined (240)
 230 225 -
Comment
 + facet compression test; “severe pain with activity” Lower extremity reflexes 2+ symmetric; motor/sensory intact; + compression test left/right ; negative straight leg raise ; “pain with activity” *Painful motion 50-70 degrees; pain increased throughout ROM with repetitive use; gait and posture normal; tenderness to palpation (TTP); TTP lumbar vertebrae, paravertebral muscles bilaterally; painful during motions of rotation with repetitive use; fatigue ability with repetitive use, joints weaker throughout ROM when resistance applied ; negative straight leg raise; motor 5/5 in extensor hallux
§4.71a Rating 5003
 10 % 10 % 10 %
5292
 10% 10% 1 0%
5295
 10%

The CI developed neck and LBP after a MVA while she was pregnant in November 2000. The lumbar spine X -ray showed a normal lumbar spine X -ray. The PT indicated an achy, sharp pain that radiated down the lateral thighs with certain bending and twisting movements . The CI was given a permanent U3 / L3 Profile for LBP, neck pain and left ulnar neuropathy. The OT noted that the CI had numbness and increased pain in extremities when she slept on her back. The MEB NARSUM examination approximately 5 months prior to separation noted that the CI had aching or gnawing back pain that would get sharp and go down into the lateral thigh with bending and twisting movements. She had severe pain with activities such as sweeping, mopping, or vacuuming . There was no radiation into the legs or numbness or tingling in the legs. The examiner noted the CI could not sit for more than fifteen to twenty minutes or stand for more than ten minutes without exacerbating her back pain. The MEB NARSUM exam findings are summarized in the chart above. The C&P examination , approximately 2 week s prior to separation, indicated that LBP was most painful during bending motions and when lifting heavy weight along with a constant pain that waxed and waned throughout the day, dependent on her physical activity. No radiculopathy accompanied the lumbar condition. The C&P exam findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence. As described above, the PEB bundled both conditions in its application of the USAPDA pain policy. The VA coded the chronic lumbosacral stain 5295 and rated 10% for characteristic pain on motion. All exams prior to separation indicated LBP with activity. The MEB exam noted that there was a constant gnawing, squeezing pain and severe pain with household activities. The C&P exam indicated that the LBP was constant and most painful during bending motions or when lifting heavy weight. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 Reasonable doubt and §4.59 Painful motion, the Board recommends a disability rating of 10% for the chronic LBP condition coded 5295.

 Contended PEB Conditions . The contended conditions adjudicated as not unfitting by the PEB were b ilateral u lnar n europathy at the e lbow and m ood d isorder with d epressive f eatures due to u lnar n europathy and p ost- s urgical p ain, u nresolved. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. These conditions were reviewed by the a ction o fficer and considered by the Board. There was no indication from the record that any of these conditions significantly interfered with satisfactor y duty performance.

 Bilateral Ulnar Neuropathy at the Elbow . The MEB NARSUM examiner indicated that the CI had bilateral hand numbness and she was evaluated by a hand surgeon in 2001. An electromyelogram (EMG) was done and it demonstrated bilateral ulnar neuropathy . The CI underwent a left ulnar nerve transposition in August 2001 . The MEB NARSUM examiner noted that although there were still some episodes of numbness and tingling on the left, symptoms were not as frequent or intense as they had been preoperatively. The CI complained of intermittent numbness and tingling on the right, present only 25% of the day and considered slight . The physical exam revealed that the C8 derm atome was hypersensitive to pin prick on the right, otherwise C4-T1 were intact and symmetric to pin prick and light touch bilaterally. A repeat EMG indicated evidence of an ulnar neuropathy at the left and right elbow. The CI was given a permanent U3L3 Profile for LBP, neck pain, and left ulnar neuropathy; however, the ulnar neuropathy condition was not implicated in the commander’s statement and this condition was not judged to fail retention standards.
Mood Disorder with Depressive Features due to Ulnar Neuropathy and Post-Surgical Pain, Unresolved. The CI self-referred to c ommunity m ental health in June 2001. At the MEB NARSUM a ddendum completed approximately 6 months prior to separation , the CI was noted by mental health to have a current Global Asses sment of Functioning (GAF) 65 (s ome mild symptoms) and a GAF of 60 (m oderate symptoms) for the previous year . This condition was judged by the examining psychiatrist to fail to meet retention standards. H owever, this condition was not profiled or implicated in the c ommander’s s tatement .

After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the either of the contended conditions and, therefore, no additional disability ratings can be recommended.


BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on the USAPDA pain policy for rating the c hronic n eck and LBP was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the c hronic n eck and LBP condition, the Board unanimously recommends that each joint be separately adjudicated as follows: an unfitting c hronic n eck p ain condition coded 5290-5003 and rated 10% and an unfitting c hronic LBP condition coded 5295 and rated 10% , both IAW VASRD §4.71a . In the matter of the contended b ilateral u lnar n europathy at the e lbow and m ood d isorder with d epressive f eatures due to u lnar n europathy and p ost- s urgical p ain, u nresolved conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration.



RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Neck Pain 5290 10%
Chronic L ow B ack P ain 5295 10%
COMBINED
 2 0%


The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 120131 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record




Physical Disability Board of Review


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130010246 (PD201200114)


1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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